The California Court of Appeal has created some First Amendment breathing room for the creators of docudramas. It's coming at the expense of legendary actor Olivia De Havilland.

The court ordered that De Havilland's suit against FX Networks over its Emmy Award-winning miniseries “Feud” be stricken under California's anti-SLAPP law, even if it did play a little fast-and-loose with De Havilland's character.

Even living legends such as De Havilland, who is 101 and lives in Paris, do “ not own history,” Second District Justice Anne Egerton wrote in De Havilland v. FX Networks. “Nor does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator's portrayal of actual people.”

Monday's decision is a win for a Munger, Tolles & Olson team spearheaded by partner Kelly Klaus. With him were partners Glenn Pomerantz, Fred Rowley Jr. and Mark Yohalem. De Havilland was represented by Howarth & Smith.

De Havilland had accused FX of violating her California right of publicity, false light invasion of privacy and other state law claims. The “Feud” docudrama, primarily about the rivalry between Bette Davis and Joan Crawford, falsely portrayed De Havilland as referring to her sister, Joan Fontaine, as her “bitch sister,” she alleged. And it made up a scene in which Catherine Zeta-Jones, portraying De Havilland in the miniseries, referred to Frank Sinatra's appetite for alcohol, she alleged.

She argued it's “standard practice” in the film and television industry to obtain consent from any “well-known living person” before her or his “name, identity, character or image” can be used in a film or television, according to Egerton's opinion.

FX argued that De Havilland had given interviews in which she referred to Fontaine as Dragon Lady, and that “bitch” was simply a shorthand. The Sinatra anecdote, the network contended, was a playful moment that didn't put De Havilland in a negative light.

Los Angeles Superior Court Judge Holly Kendig had denied FX's anti-SLAPP motion. She reasoned that FX sought to portray the actors as realistically as possible, and was therefore not entitled to First Amendment protection that would trump De Havilland's claims.

But Egerton, who was joined by Justice Lee Smalley Edmon and LA Superior Court Judge Halim Dhanidina sitting pro tem, said that would lead to lawsuits over books, films, plays and television programs that accurately portray real people.

If the suit went forward, it would put TV and filmmakers in a catch-22, Egerton wrote. “If they
portray a real person in an expressive work accurately and realistically without paying that person, they face a right of publicity lawsuit,” she wrote. “If they portray a real person in an expressive work in a fanciful, imaginative—even fictitious and therefore 'false'—way, they face a false light lawsuit if the person portrayed does not like the portrayal.”

Egerton reached back to a 1970s opinion by former Chief Justice Rose Bird in a case where Rudolph Valentino's heirs sued over his portrayal in a fictional film. “Whether [the producers'] work constitutes a serious appraisal of Valentino's stature or mere fantasy is a judgment left to the reader or viewer, not the courts,” Bird had written.

Egerton also quoted a Ninth Circuit decision from a case in which an Army sergeant challenged his portrayal in “The Hurt Locker.” Judge Diarmuid O'Scannlain wrote in that decision that the First Amendment “safeguards the storytellers and artists who take the raw materials of life—including the stories of real individuals, ordinary or extraordinary—and transform them into art, be it articles, books, movies, or plays.”

De Havilland drew considerable amicus interest. The Motion Picture Association of America, Netflix, the Reporters Committee for Freedom of the Press, the Electronic Frontier Foundation and law professors Eugene Volokh and Jennifer Rothman were among the amici curiae.